The high court in Pretoria has overturned Trade and Industry Minister Ebrahim Patel’s decision to appoint one of his own officials as acting chairperson of the National Lotteries Commission. Picture: File
The high court in Pretoria has overturned Trade and Industry Minister Ebrahim Patel’s decision to appoint one of his own officials as acting chairperson of the National Lotteries Commission. Picture: File

Appointment of National Lotteries Commission head overturned

By Zelda Venter Time of article published May 11, 2021

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Pretoria - The EFF has welcomed a judgment in which the high court in Pretoria overturned Trade and Industry Minister Ebrahim Patel’s decision to appoint one of his own officials as acting chairperson of the National Lotteries Commission.

Judge Norman Davis reviewed and set aside the appointment of Zandile Brown as acting chairperson with effect from December 1.

He also declared any extension of her appointment as invalid.

The judge further ordered that the National Lotteries Commission was authorised to continue to effect payments for expenditures and the distribution of funds as contemplated in the annual budget as approved in January.

The department was told to foot the bill for the application launched by the National Lotteries Commission in which it challenged Brown’s appointment.

The commission said not only was the minister not entitled in law to appoint Brown, but it was an irregular step.

“Not only is she an employee in the minister’s department, she is also the minister’s representative on the board.

“However, as chairperson, she is the custodian of board impartiality.

“There is not a deputy chairperson to safeguard the maintenance of impartiality by the incumbent. Impartiality under these circumstances is illusory,” Thabang Mampane, commissioner of the National Lotteries Commission, said in court papers.

Brown was appointed in her acting capacity by Patel after the term of the former chairperson, Professor Alfred Nevhutanda, came to an end.

Judge David was told that it was crucial for the chairperson, or in this case, acting chairperson, to be impartial as the person at the helm could veto any decisions made by the board.

It was pointed out that the operations of the board include the approval of the licensed operator of the National Lottery and it was “well known” that the current operator’s term lapses in 2022.

Brown was appointed in the acting position without any recommendations from the Parliamentary Portfolio Committee on Trade and Industry. Thus, it was argued, the appointment was illegal.

Nevhutanda stated that the legality of the board meetings convened by Brown has created a looming governance crisis affecting the general public. He said as her appointment is invalid, vital decisions taken during board meetings would also be invalid.

“Members of the board fear being held liable for wasteful or irregular expenditure arising from improperly convened board meetings and they are reluctant to attend. The urgent intervention of the court is thus needed,” he said.

The minister said that after the term for the previous chairperson lapsed, his department published a notice in the Government Gazette calling for nominations.

After he had received nominations, he did his own screening process and came up with the names, including Professor Barney Pityana. The portfolio committee pointed out that this was contrary to the Lotteries Act.

While the process was still ongoing to appoint a permanent chairperson, the minister decided to appoint Brown in the interim, as he was of the opinion he had the power to do so.

Despite objections from the board, pointing out that he did not have this power, the minister forged ahead with the appointment.

Judge Davis said an open and transparent process was not followed by the minister, as stipulated in the act. The judge pointed out that the minister went ahead and appointed Brown even before he told the portfolio committee of his intentions to do so.

He said the appointment of Brown was clearly outside the provisions of the act.

While the minister claimed that removing Brown at this stage would “rock the boat” of the board, the judge said this would only endure for a short while, as within a few weeks the National Assembly was expected to recommend a proposed chairperson.

In the meantime, the day-to-day operations of the commission will continue under the leadership of the commissioner and distributions will continue to be made, the judge said.

The EFF has called for the urgent finalisation of the process of appointing a chairperson. They have accused Patel of manipulating the process to appoint the chairperson so as to “corruptly (direct) the lottery licence to his friends.”

Pretoria News

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